Kandel v. White

CHASANOW, Judge. We are called upon in this case to determine whether a cause of action may be maintained for survival and wrongful death resulting from the negligent infliction of prenatal injuries causing the death of a nonviable stillborn fetus. For the ⁴³⁴ reasons discussed below, we hold that a cause of action for wrongful death may not be maintained on behalf of a nonviable fetus who is stillborn. I. This appeal arises out of a tort action filed in the Circuit Court for Baltimore City by Peter T. Kandel, as Personal Representative for the Estates of Cheryl Scott and “Baby Child Scott,” and Jean Hayes against the Mayor and City Council of Baltimore and Terrill White. 1 The plaintiffs in the tort action sought damages for survival and wrongful death arising out of an automobile accident which resulted in the deaths of Cheryl Scott and Baby Child Scott.

On May 2, 1993, Cheryl Scott (Scott) was a passenger in a vehicle being driven by Terrill White (White). White was driving his vehicle eastbound on Mulberry Street near its intersection with Cathedral Street in Baltimore City. At the same time, an ambulance owned and operated by the Mayor and City Council of Baltimore was travelling southbound on Cathedral Street near its intersection with Mulberry Street. As both vehicles entered the Mulberry Street and Cathedral Street intersection, they collided.

As a result of this collision, Scott suffered serious bodily injuries. At the time of the accident, Scott was approximately eight weeks pregnant with Baby Child Scott. Among the injuries suffered by Scott as a result of the accident was an incomplete abortion of the fetus. The day following the accident, a dilatation and curettage was performed to terminate Scott’s pregnancy.

On May 22, 1993, Scott died due to complications from her injuries. The plaintiffs filed a complaint for survival and wrongful death in the Circuit Court for Baltimore City on behalf of Scott and her unborn fetus, Baby Child Scott. White filed a motion to dismiss all claims alleged against him for the wrongful death of Baby Child Scott arguing that no cause of ⁴³⁵ action may be maintained on behalf of a nonviable stillborn fetus. Judge Ellen M. Heller granted White’s motion to dismiss.

The plaintiffs then filed a proposed order requesting that final judgment be entered dismissing with prejudice all claims brought on behalf of Baby Child Scott. Judge Clifton J. Gordy, Jr. of the circuit court refused to enter a final judgment dismissing all claims brought on behalf of Baby Child Scott pending final judgment as to all parties in the case. The plaintiffs later forwarded a proposed order to Judge Joseph H.H. Kaplan of the circuit court stating that the case had settled and requesting that the judge sign the proposed Order. Judge Kaplan signed the order entering a final judgment dismissing the action with prejudice.

The order was filed with the circuit court on June 30, 1994. That same day, appellant appealed this case to the Court of Special Appeals. Prior to the intermediate appellate court’s consideration of this case, we issued a wiit of certiorari to consider whether a cause of action can be maintained for the death of a nonviable stillborn fetus. We note that the parties to this appeal do not dispute the fact that Baby Child Scott was a nonviable stillborn fetus.

II

We first addressed the right of recovery for prenatal injuries in Damasiewicz v. Gorsuch, 197 Md. 417 , 79 A.2d 550 (1951). In Damasiewicz , we held that a child who was injured while en ventre sa mere and born alive with permanent injuries, had a right to recover for its injuries. 197 Md. at 441 , 79 A.2d at 561 . Subsequently, in State v. Sherman, 234 Md. 179 , 198 A.2d 71 (1964), we considered whether a cause of action could be maintained on behalf of a viable fetus who was stillborn. In Sherman , the mother of a viable child suffered serious bodily injury as a result of an automobile accident.

The child, who was a viable fetus in the ninth month of development, was delivered stillborn shortly after the accident. We held that a cause of action could be maintained on ⁴³⁶ behalf of the viable fetus to recover for its prenatal injuries. Sherman, 234 Md. at 185 , 198 A.2d at 73 . Later, in Group Health Ass’n v. Blumenthal, 295 Md. 104 , 453 A.2d 1198 (1983), we considered whether a cause of action may be maintained on behalf of a nonviable fetus who was born alive.

In that case, Ms. Blumenthal suffered from an incompetent cervix requiring surgical closure during pregnancy to prevent the premature expulsion of the fetus. When Ms. Blumenthal was approximately four and one-half months pregnant, she allegedly asked her obstetrician about this surgical procedure and was told that it was unnecessary at that time. She also claimed that she informed her doctor that she was planning an automobile trip from Maryland to Tennessee and was told that the road trip would not be harmful to her condition. While in Tennessee, Ms. Blumenthal gave birth to a child who died about two and one-half hours after delivery.

The child was approximately nineteen to twenty weeks gestation and was not viable. We held that regardless of viability, “a cause of action lies for the wrongful death of a child bom alive who dies as a result of injuries sustained while en ventre sa mere.” Blumenthal, 295 Md. at 119 , 453 A.2d at 1207 (emphasis added). Thus, we have held that a cause of action lies for prenatal injuries to a viable child who is either stillborn or born alive and to a nonviable child who is born alive. In the instant case we are asked to consider whether a cause of action lies for prenatal injuries to a nonviable fetus who is stillborn.

Although appellant argues that permitting a cause of action for a nonviable stillborn fetus is simply a logical extension of our previous holdings, we disagree and decline to extend a cause of action to a nonviable stillborn fetus. Appellant argues that when we permitted a cause of action on behalf of a nonviable fetus in Blumenthal , we “erased the distinction” between viable and nonviable fetuses for purposes of a wrongful death cause of action and thus, there is no justification for refusing to permit a cause of action for the wrongful death of the nonviable fetus in the instant case ⁴³⁷ simply because the fetus was stillborn. Contrary to appellant’s argument, however, Blumenthal in no way erased the distinction between viable and nonviable fetuses for purposes of permitting a cause of action for the wrongful death of a fetus. In determining whether a cause of action existed for a child who was born alive before reaching the point of viability, we noted in Blumenthal that “the concept of viability has no role in a case, such as this, where the child is born alive.” 295 Md. at 116 , 453 A.2d at 1206 .

Thus, Blumenthal did not permit a cause of action for prenatal injuries based on the child’s viability status but rather permitted a cause of action solely because the child was born alive. As we noted in Blumenthal in rejecting the viability distinction when a child is born alive: “ ‘To say now that a child will be recognized as alive and capable of inheriting, and later taking possession of property when born alive, but not recognized as alive for the purpose of sustaining injuries for which suit might be brought if they wrongfully cause its death is an incongruous result.’ ” 295 Md. at 118 , 453 A.2d at 1206 (quoting Wolfe v. Isbell, 291 Ala. 327 , 280 So.2d 758, 764 (1973)); see also Humes v. Clinton, 246 Kan. 590 , 792 P.2d 1032, 1036 (1990) (noting “that viability—the ability to live independently of the mother—is an irrelevant demarcation when a child survives prenatal injuries and is born [alive] with damages suffered within the womb”). In the case of a child born alive, viability is irrelevant because the cause of action is not on behalf of an unborn fetus, but is rather brought on behalf of an independent living person with a separate legal existence who suffered injuries. See Wallace v. Wallace, 120 N.H. 675 , 421 A.2d 134, 135 (1980).

See also Humes, 792 P.2d at 1037 (noting that “viability is an improper condition precedent to recovery when the injured fetus is born alive ... [but] viability is not an illogical condition precedent when a negligently injured fetus is stillborn” because it “has never become an independent living ⁴³⁸ person”) (citation omitted); Thibert v. Milka, 419 Mass. 693 , 646 N.E.2d 1025 , 1027 n. 7 (1995) (noting that in the case of a nonviable fetus “it is proper to distinguish between those that were born alive and those that were not because it is the very fact of a live birth that gives the child an independent existence and therefore a separate cause of action”). Thus, although a cause of action may be maintained on behalf of a nonviable fetus who is born alive, our cases have consistently held that viability is a condition precedent to maintaining a cause of action on behalf of a stillborn fetus. Appellant also contends that the circuit court based the refusal to permit a cause of action in the instant case, in part, on the erroneous reason that “to recognize ... a cause of action [for the wrongful death of a nonviable stillborn fetus] could give rise to an ‘inherent conflict’ by giving a mother the right to terminate a pregnancy yet holding that an action could be brought on behalf of the same fetus under a wrongful death act.” Appellant argues that no “inherent conflict” would be created by permitting a cause of action for wrongful death on behalf of a nonviable stillborn fetus while at the same time recognizing a woman’s choice to terminate her pregnancy during the first trimester. Appellant argues that because a woman’s choice to end her pregnancy during the first trimester is protected under the United States Constitution, see Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), a woman choosing to terminate her pregnancy during the first trimester would not be liable for wrongful death of the fetus.

On the other hand, appellant argues that no such right has been created for tortious injuries inflicted by third parties causing the death of a fetus. Thus, appellant contends that no inherent conflict arises in permitting a cause of action on behalf of a nonviable stillborn fetus even though a woman may terminate her pregnancy during that same stage in the fetus’s development. We note that other jurisdictions have recognized this “inherent conflict” in refusing to extend a cause of action to a nonviable stillborn fetus. For example, in Toth v. Goree, 65 Mich.App. 296 , 237 N.W.2d 297 (1975), the court noted that ⁴³⁹ “[i]f the mother can intentionally terminate the pregnancy at three months, without regard to the rights of the fetus, it becomes increasingly difficult to justify holding a third person liable to the fetus for unknowingly and unintentionally, but negligently, causing the pregnancy to end at that same stage.” 237 N.W.2d at 301 .

See also Wallace, 421 A.2d at 137 (noting that “it would be incongruous for a mother to have a federal constitutional right to